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ELCPartially AllowedNot stated in the judgment (Environment & Land Court at Nakuru, plaint filed 26th March 2015)· [2016] KEELC 1197 (KLR)

Jiweze Development Ltd & 2 others v Jim K. Kairu & another [2016] KEELC 1197 (KLR)

Environment & Land Court
20 January 2016
MSMunyao Sila
1,217 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court barred defendants from occupying private plots because they could not prove any claim to the land.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nakuru delivered by Munyao Sila J on 20th January 2016, in a suit commenced by plaint on 26th March 2015. The plaintiffs, registered proprietors of seventeen plots being subdivisions of Kiambogo/Kiambogo Block 2/14285 (including the Mwariki parcel 14287 purchased by the 3rd plaintiff), sought an interlocutory injunction restraining the defendants from interfering with the suit properties pending the hearing of the suit, alleging interference with beacons and fences and illegal ploughing. The defendants opposed, asserting that the suit properties were public utility land set aside for a secondary school, connected to land parcel 541 which is the subject of Nakuru Judicial Review Case No. 35 of 2012, and asked for consolidation and dismissal of the application. The court directed a survey report, which established that the original parcel 14285 borders public utility plot 558, that no development exists on the public utility plot, and that the nursery school stands on parcel 19435. Applying the Giella vs Cassman Brown principles, the court found no connection between the suit properties and parcels 541, 14283 and 14284 claimed in the judicial review case, and held the defendants had failed to demonstrate any claim or right over the suit properties. The application was allowed: the defendants and their agents were restrained from entering upon or interfering with the suit properties pending determination of the suit, with costs to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for interlocutory injunction

Holding

Yes. The plaintiffs produced title deeds to the suit properties, while the defendants' only defence related to land that is not the suit properties, so the plaintiffs demonstrated a prima facie case with a probability of success and irreparable harm.

Reasoning

The court applied the Giella vs Cassman Brown principles. The plaintiffs annexed title deeds showing they own the suit properties (subdivisions of parcel 14285 and the independently purchased parcel 14287). The defendants claimed the land was public utility and subject to Nakuru Judicial Review Case No. 35 of 2012, but that case concerned parcel 541 and its subdivisions 14283 and 14284, which are not the suit properties. The defendants therefore showed no claim or right to be on the suit properties, while continued interference would cause irreparable harm.

p. 2
02

Whether the suit properties are connected to the land in the judicial review proceedings

Holding

No. The land claimed in the judicial review case is parcel No. 541 and its subdivisions 14283 and 14284, which are different from the suit properties.

Reasoning

The court examined the judicial review motion annexed to the defendants' replying affidavit and found the land claimed there to be parcel Kiambogo/Kiambogo Block 2/541, allegedly public land illegally subdivided into parcels 14283 and 14284. The plaintiffs' properties derive from parcel 14285 and parcel 14287. On a court-directed survey report, the nursery school stood on parcel 19435, not on a public utility plot. No relationship between the parcels was demonstrated.

p. 2

Legal principles established

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  • The principles for the grant of an interlocutory injunction are as set out in Giella vs Cassman Brown: prima facie case, irreparable loss, and balance of convenience if in doubt.
  • A registered proprietor who annexes title deeds to the suit properties establishes a prima facie case where the defendant fails to demonstrate any claim or right over those properties.

Court orders

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  1. 1.Injunction restraining the defendants, their servants/agents/assigns or any person claiming under them from entering, being upon, interfering with the fences or beacons, or in any other way interfering with the occupation of the plaintiffs of the suit properties, pending hearing and determination of the suit
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Cases cited (2)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nelson Omolo Achola vs George Omondi Ajwala
    Kisii ELC Case No. 321 of 2013 (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (suit commenced by plaint)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jiweze Development Ltd & 2 others v Jim K. Kairu & another [2016] KEELC 1197 (KLR)", Case Analysis (2016). Not stated in the judgment (Environment & Land Court at Nakuru, plaint filed 26th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1197/eng@2016-01-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.